19 Mar 2023 Kansas Legislative Update – Week 10
As the number of available days for committee work winds down in the 2023 Kansas legislative session, lawmakers put in extra hours this week ushering bills out of their respective committees and spending more time on the House and Senate floor to pass preliminary state agency budgets for fiscal years 2024, 2025 and 2026. With little more than a week remaining before extended floor debate to close the session, numerous bills are being considered.
Eminent Domain Approval
This week, Senate Bill 312 was introduced and referred to the Senate Committee on Local Government. The bill would require the board of county commissioners prior to the exercise of the power of eminent domain by certain public utilities. The bill has been scheduled for hearing on Thursday, March 23 at 9:30 am in room 142-s.
Annual Personal Property Tax Rendition
Senate Bill 8 would reduce statutory penalties for the late filing, or failure to file, of personal property renditions to the county appraiser. Kansas Grain and Feed Association testified in support of the measure and explained its importance to our industry following the 2022 Kansas Court of Appeals decision finding that grain elevator machinery and equipment should be classified as personal property rather than as fixtures to the realty. KGFA successfully amended the bill to: (1) allow county appraisers to waive late penalties, (2) require such penalties to be waived if the machinery and equipment was previously classified as real property, and (3) remove the requirement to annually file the personal property rendering unless there is a change in the property list. The Senate adopted the proposed amendments and passed the bill on a unanimous vote. This week, the House Tax Committee held a hearing on the bill where Kansas Grain and Feed Association, Kansas Agribusiness Retailers Association, and Renew Kansas Biofuels Association testified in strong support of the measure. The committee will take final action on the bill next week.
Required Property Valuation Methodology for Grain Elevators and Special Purpose Properties
Senate Bill 274 would require the use of the cost approach for valuing special purpose property for property tax valuation purposes. The bill specifically includes grain elevators in its definition of special purpose properties. The Senate Tax Committee held a hearing on the bill this week. Kansas Grain and Feed Association and Renew Kansas Biofuels Association provided neutral testimony stating, “We support the intent of this bill to provide more clear legislative guidance to appraisers when assessing special purpose properties. We also completely agree with the express exclusion of “blue sky” or other business value when assessing these properties. Specifically, use of the income valuation approach is often inaccurate and inappropriate for assessing these properties. However, requiring use of the cost approach is also not feasible at times, such as now, when the cost of new construction is highly inflated. Use of such metrics during high inflationary periods can unreasonably distort the assessment of similar existing structures. At those times, the best valuation methodology to find fair market value is generally the comparative sales approach.” Due to concerns raised by KGFA, Renew Kansas and other organizations impacted by the proposed bill, the committee is not likely to take action on the legislation.
PVD Directives in Agency Regulations
Senate Bill 263 was introduced at the request of the Senate Tax Committee Chair. The bill would amend K.S.A. 2022 Supp. 79-505 to require all valuation directives of the Kansas Dept. of Revenue’s Property Valuation Division to be set forth in agency rules and regulations. During a hearing this week in the Senate Tax Committee, Kansas Grain and Feed Association testified in support of the measure as it adds transparency to the guide revision process. Read KGFA’s testimony.
Various Tax Bills
The Senate passed three tax bills that, together, would provide more than $1.1 billion in tax cuts. The bills are scheduled for hearing in the House Tax Committee.
- Income Tax– The Senate passed Senate Bill 169 to create a single 4.75 percent individual income tax rate and eliminate the current progressive three-tier rates. The measure drops the rate on middle (5.25 percent) and high-income (5.7 percent) taxpayers to 4.75 percent and increases the 3.1 percent rate on lower-income Kansans, while increasing the standard deduction. The bill is projected to cost the state more than $550 million a year, and more than $1.3 billion over a three-year period. The bill passed the Senate 22-17, short of the 27 votes needed to override a veto from the Governor. The House Tax Committee held a hearing on this legislation on Monday, March 13.
- Social Security Income Tax– The Senate passed Senate Bill 33 on a vote of 36-3. The bill would eliminate state income tax on Social Security payments and is projected to cost the state $147 million annually. The bill is more costly than what Governor Laura Kelly had proposed. The bill was amended to include other tax cuts, further increasing the cost of the bill. The House Tax Committee held a hearing on this legislation on Tuesday, March 14.
- Food Sale Tax – Senate Bill 248 would eliminate state and local sales tax on all food and food ingredients beginning next year. The bill, which passed 22-16, would cost the state about $277 million a year. The House Tax Committee held a hearing on this legislation on Monday, March 13.
State and Local Tax Clarification
This week, Senate Bill 313 was introduced to clarify the determination of taxable income and the pass through of tax credits to electing pass-through entity owners for purposes of the SALT parity act. The bill was introduced under the premise that the state department of revenue was not correctly applying the SALT parity bill that was passed last year. The bill will be heard on the Senate Tax Committee on Wednesday, March 22.
Maximum Property Valuation Annual Increase
This week, SCR 1610 was introduced by Senator Caryn Tyson, Chair of the Senate Committee on Assessment and Taxation. The resolution would amend section 1 of article 11 of the Kansas Constitution to limit annual increases in real property valuations to no more than 3 percent. The bill was introduced as a means to help control the increase in ad valorem property taxes. The bill is scheduled for hearing in the Senate Tax Committee on Wednesday, March 22.
Electric Utility Rates
Kansas has the highest energy rates in our region, and multiple bills have been introduced to address high electric utility rates while ensuring reliable service:
- House Bill 2154 would reform the Kansas Corporation Commission by allowing for the election of commissioners and establishing a utilities regulation division in the office of the attorney general to represent and protect the collective interests of utility customers in utility rate-related proceedings. A hearing was held on the bill, and the Senate Utilities Committee held a hearing on its companion bill, Senate Bill 88.
- Senate Bill 54 allowing a 0 percent sales tax rate on commercial utilities, was passed out favorably by the Senate Tax Committee. House companion bill House Bill 2221 has not been scheduled for hearing.
- Senate Bill 68 would allow state energy producers a Right-of-First-Refusal to build out new electric transmission line assets in the state. Renew Kansas, Kansas Grain and Feed Association, and Kansas Agribusiness Retailers Association joined other commercial and residential utility rate payers in opposing the measure during multi-day hearings, arguing that the bill would remove competition from the build process and result in higher electric energy rates. The Senate Utilities Committee advanced the bill out of committee, but the bill has not been brought up for debate by the full Senate.
Transmission Delivery Charges on Energy Users
House Bill 2225 was introduced in an attempt to limit Evergy’s direct recovery of costs related to electric public utility transmission projects. The House Utilities Committee passed the bill out favorably, but stakeholders were asked to work with Evergy to find a compromise position. The bill was then referred back to committee and, on Thursday, an agreed amendment was added to the bill before being passed out favorably. As amended, the bill (1) reduces Evergy’s authorized return on equity (ROE) on local transmission projects, (2) sets up a project review process at the KCC, and (3) requires Evergy to submit testimony on competitive rates and impacts on economic development during any rate case. The major consumer concession was allowing Evergy to continue to assess annual increases through its transmission delivery charge (TDC). The KCC estimates the bill will provide ratepayer savings of $40M to $45M over three years. That includes the cumulative impacts of about $10M/year in upfront savings and approximately $2M/year in annual savings from new projects at the lower ROE. The full House voted to pass the bill favorably on a vote of 120-1. It is expected that the Senate Utilities Committee will hold a hearing on the bill next week.
Short Line Rail Grant Program
In 2020, the legislature passed the Eisenhower Legacy Transportation Program which included a $15 million, three-year, cost-share grant program for qualified track maintenance and improvements to short line rail and rail siding. In 2020, 2021, and 2022 the Kansas Dept. of Transportation (KDOT) set aside a percentage of the $5 million program funds specifically for rail siding projects. This year’s approved projects were announced this week by the Governor’s office. Kansas agribusiness infrastructure has greatly benefited from this program. In coordination with KDOT, Kansas Grain and Feed Association introduced House Bill 2335 to restructure the Short Line Rail Improvement Fund program to combine it with KDOT’s Rail Service Improvement Fund Program. The bill makes it easier to administer the cost-share grant program and would dedicate $10 million annually from the state highway fund for the program. Under the bill, grain shippers and other owners of rail siding adjacent to short line rail, would be able to directly apply for program funding. KGFA joined Renew Kansas Biofuels Association, Kansas Agribusiness Retailers Association, and the Kansas Cooperative Council in supporting the measure which passed the House 117-5. The Senate Transportation Committee held a hearing on Thursday, March 16, where KGFA, Renew Kansas, and KARA served as the lead proponent on the legislation. The bill drew no opposition, and we anticipate the committee taking final action on the bill next week.
Maximum Train Length and Minimum Set Back on Rolling Stock
Senate Bill 271 was introduced and referred to the Senate Committee on Transportation. The bill would limit the length of trains on any main line or branch line to 8,500 feet and establish a for minimum distance for storage rolling stock of 250 feet from an intersection. The Senate Transportation Committee held a hearing on the bill on March 7 where the committee chairman stood as a proponent. There was significant committee discussion on whether, and to what extent, this area of law might be preempted by federal regulations. Before passing the bill out of committee this week, the committee amended the bill in three parts:
- Clarify that the 250-foot setback only applies at crossings without electronic warning signals,
- Remove Kansas Dept. of Transportation duty to serve as the inspection and enforcement agency for the bill, and
- Sunset the maximum train length provision of the bill on July 1, 2027.
The bill continues to draw additional opposition from rail customers as it moves forward.
House Bill 2168 would add industrial hemp seed to the statutory definition of grain in the Kansas grain warehouse law. The Kansas Department of Agriculture is reviewing the bill for other impacts the designation might have. No hemp ingredients have been federally approved for use in animal feed, and it is unknown whether hemp ingredients are safe for animals or can be utilized as a source of nutrition when consumed for extended periods of time. These questions should be answered before hemp is used for commercial feed purposes to ensure the safety of the public, animals, and the agricultural industry. The House Committee on Agriculture held a hearing on the bill on March 15 where Kansas Grain and Feed Association provided opposition testimony. It is not anticipated that the bill will move forward.
Senate Advances Budget Bill
On Thursday evening, the Senate advanced its initial budget bill (Sen Sub for Senate Bill 155) to a final action vote after amending the bill multiple times. The bill includes a $9.24 billion budget for the remainder of the current fiscal year (2023) and $9.420 billion for the upcoming fiscal year (2024). The bill includes $52.0 million that would be transferred to the Office of the State Treasurer for investment and the interest would be used to pay off water storage debt associated with the Milford and Perry Lake reservoirs. The bill does not include a $500 million transfer to the Budget Stabilization Fund that was recommended by Governor Laura Kelly. Notable amendments to the budget include:
- A 3.25 percent cut to most state agencies, which would provide a total budget savings of $97 million.
- A requirement for state agencies to follow the zero-based budgeting and a Legislative Post Audit study of agency compliance.
- An amendment requiring the state to use E-verify system for employees, and possibly certain state contractors.
Water Policy Bill Placing New Requirements on GMDs
House Bill 2279 would amend the Groundwater Management District act to place new annual reporting and conservation action plan requirements on the districts. Kansas Agribusiness Retailers Association joined other stakeholders in successfully amending the bill to make it more reasonable for the districts. The full House passed the bill as amended 116-6. The Senate Committee on Agriculture and Natural Resources held a hearing on the bill on Tuesday, March 14. The committee will consider amendments and take final action on Monday, March 20. One proposed amendment has been circulated by Senator Marci Francisco. The amendment would define the terms ‘high usage of groundwater’ and ‘high rates of decline in the groundwater table’. The committee is also likely to amend the bill to push back the reporting date for the annual audit, and also provide additional time for the GMDs to identify their priority areas of concern.
State Water Plan Funding Bill
House Bill 2302, introduced by House Water Committee Chairman Jim Minnix (R-Scott City), would enhance funding for the state water plan fund by crediting 1.231 percent of current state sales tax revenues (approximately $53 million) directly to the fund. The bill would also modify the distribution of revenue into the fund and create a water technical assistance fund and a water projects grant fund for water infrastructure projects. The dedicated state sales tax revenue would be added to the current fees collected from agricultural and municipal water users. The bill would sunset in 5 years. Specifically, the bill would set aside the following funds, annually, from the state water plan fund for three years: $5M to a water technical assistance fund, $15M to a water projects grant fund, and at least $15M to the retirement of water supply storage debt for two state reservoirs until the debt is retired. The House passed the bill 119-3. The Senate Committee on Agriculture and Natural Resources held a hearing on the bill on March 15, where Kansas Grain and Feed Association, Kansas Agribusiness Retailers Association and Renew Kansas Biofuels Association provided proponent testimony reporting that the bill would “provide necessary public investment in conservation of our state’s water resources and water infrastructure.” The committee will consider amendments and take final action on Tuesday, March 21. Some GMDs have requested that the bill be amended to include specific funding for groundwater management districts and conservation projects that will be required by HB 2279.
Point of Diversion Legislation
This week, House Bill 2459 was introduced by Representative Kenny Titus (R-Manhattan). The bill would amend the Kansas water appropriation act to prohibit the change of the point of diversion of a water right if such change would cause the safe yield of the source of water supply to be exceeded. The bill was referred to the House Committee on Water.
Penalties for Failing to Timely Remit Withholding Taxes
House Bill 2411 would decrease statutory penalties for employer failing to timely remit employee withholding income taxes. Under current law, the penalty for the failure of an employer to remit any amount of withholding taxes is 15.0 percent of the amount of underpayment. The bill would set the penalty as a percentage of the amount of the underpayment as follows: 2 percent if remitted within one to five days; 5 percent if remitted within six to 15 days; 10 percent if remitted after 15 days; and 15 percent if remitted after 15 days and the Department has issued a notice to the person regarding the underpayment, but the amount of the underpayment was not remitted within ten days of issuance of the notice. The House Tax Committee will take final action on the bill next week.
Prohibiting Foreign Ownership of Real Property
Senate Bill 283 would prohibit the future conveyance of real property in Kansas to “foreign adversaries”, as the term is defined by federal law. The bill was referred to the Senate Judiciary Committee, and a hearing is scheduled for Tuesday, March 21, with committee action to be taken the following day. Two similar bills were previously introduced this year in Senate Bill 100 and House Bill 2397. The House Committee on Agriculture held a hearing on House Bill 2397 but did not act on the bill. Senate Bill 100 was referred to the Senate Judiciary committee where it did not receive a hearing. This issue is a high priority item of new Kansas Attorney General Kris Kobach.
Apprenticeship Tax Credit Act
HB 2292 would establish a three-year Kansas apprenticeship tax credit to encourage the development of apprenticeship programs by participating businesses. The credit would be up to $2,500 for each apprentice so employed, and the tax credit may be awarded up to 20 apprentices per year. The program would be administered by the Kansas Department of Commerce. The House passed the bill favorably on a vote of 115-7. The Senate Commerce Committee held a hearing on the bill on Thursday, March 9, where Kansas Grain and Feed Association and Kansas Agribusiness Retailers Association joined other stakeholders in support of the measure. Prior to passing the bill out of committee, Senators amended the bill to cap the amount of the grant provision per year and added a provision that any unused balance would be transferred to the State General Fund.
Third-Party Funded Litigation
Senate Bill 74 would provide for joint liability of costs for third-party funded litigants and also allow for sanctions on third-party funded litigants. The bill would also require certain discovery disclosures and payment of certain costs for nonparty subpoenas. The bill was heard in the Senate Judiciary Committee. The bill was referred to an exempt committee to keep it alive for further action this session and stakeholders are working on a possible amendment to address specific concerns.
Scrap Metal Theft Reduction Act Extension
House Bill 2326 would extend the sunset date on the current scrap metal theft reduction act and clarify that catalytic converters are covered by the act. Kansas Grain and Feed Association, Kansas Agribusiness Retailers Association, and Renew Kansas Biofuels Association joined other affected industries in supporting the measure. Agribusiness groups supported the initial passage of the measure when it was passed five years ago. The House passed the bill 120-1. The Senate Judiciary Committee held a hearing on the bill this week. The Committee amended the bill and then passed it out favorably.
State Preemption of Local Plastic Regulations
House Bill 2446 would prohibit cities and counties from regulating plastic and other containers. The bill received a hearing in the House Committee on Federal and State Affairs on March 15.
Motor Carrier Independent Driver Status
House Bill 2020 was introduced to clarify that the employment status of a driver of a motor carrier does not change as a result of the inclusion of safety improvements made to the vehicle. The House passed the bill 122-0. The Senate Transportation Committee held a hearing on the bill. The committee amended the bill to make it effective upon publication in the Kansas Register before passing it for consideration by the entire Senate.
Wind Energy Light Mitigation
Senate Bill 49 would require light-mitigating technology systems to be installed on new wind energy conversion systems. The Senate amended the bill before passing it on a vote of 39-1. The House Energy and Utilities Committee held a hearing on the bill on March 16, and has scheduled final action on the bill on Tuesday, March 21.
As introduced, Senate Bill 135 would create the medical cannabis regulation act to regulate the cultivation, processing, distribution, sale, and use of medical cannabis. The bill received a hearing in the Senate Committee on Federal and State Affairs on March 15. After hearing opponent testimony, committee members ultimately decided to table the bill for the remainder of the session.
Other Bills We Are Monitoring:
SB 79 authorizing counties to impose a county earnings tax. Hearing held in Senate Tax.
SB 166 requiring public disclosure of a transmission line siting permit. Passed out of Senate Utilities. Blessed.
SB 196 reinstating local ad valorem tax reduction fund transfers. No hearing scheduled.
SCR 1606 establishing an initiative and referendum Constitutional Amendment. No hearing, blessed.
HB 2192 creating a Kansas Secretary of State website for grants, applications, awards. No hearing.
HB 2350 establishing the crime of human smuggling. Passed House, hearing in Sen Judiciary.
HB 2366 providing for local ad valorem tax reduction fund transfers. House Tax.
HB 2436 prohibiting public contracts from giving preferential treatment based on ESG criteria. Passed out of House FII.
HCR 5009 amending the Kansas constitution to decrease residential assessed value for real property to 9 percent. Hearing in House Tax.